-265-Chapter - IV

SOURCES OF LAW RELATING TO THE TRADITIONAL MEDICINEi KNOWLEDGE

This chapter refers to the source of law relating to the TMK; they are

original and authoritative sources as proposed to the legal commenlaries and

literatures. The sources of law generally are either legal or historical. A rule of

law may immediately be laid down by decision of a court; but the court might

have drawn its decision from the writing.of some eminent jurists, vyho in his

turn, might have taken it from some old compilation and the old compilation

itself may be based for the new compilation. The legal sources are authoritative

and the historical sources are persuasive in value and legal sources are allowed

by the court as of right, but not historical sources. When recognition is granted

to any of the legal sources and such sources are principals of respective courts,

such decision of the courts become the legal source of the rule. Any rule of law

laid down by the judicial decision at the court of law, it is a principle again that

the judicial decision as the source of law, it is a principle again that a judicial

decision can be disturbed by a higher authority in the hierarchy of court or by

the legislature. However, the supremacy of power depends on the constitution

of the respective countries. For e.g. in England the Parliament is thei supreme

authority, but in India the Constitution is the supreme in the states.

This research chapter deals with the sources of law in respect of the

Traditional Medicine Knowledge. It is difficult to determine sources of law

relating to traditional medicine knowledge since it is newly born concept to the

law. However, to formulate the new legal system to the, traditional medicine

knowledge, the existed sources of law are also helpful and required to look into.

The main sources of law are - Customs; Judicial Precedent and

Legislations/Conventions. Infact, there is no effective legal system formulated

to the traditional medicine knowledge so far. However, the legal developments

-266-of the traditional knowledge are nearest and interrelated subjecjt to the

traditional medicine knowledge. The new concept of traditional medicine

knowledge is formulated on basis of some existed enactments, conk^entions,

judicial decisions and customary practices either in respect of the TK or in

respect of the TMK.

This chapter is relevant to understand the sources of tij-aditional

knowledge and what are its conceptual notions to strengthen the TMK system

as well as, to form legislation with an intention to resolve all the legal problems

of the traditional medicine practitioners. The sources of law are the basic factors

on the particular legal subject or concept and on basis of foundation of sources,

further constructions on such subject or concept to be built. Infact ^here is a

brief discussion ii this chapter in respect of major sources of law like,

legislation, president, custom, etc as there is no legal development in respect of

the TMK.

4.1 Traditional/Customary Practices

In the early stages of a legal system hold away, undoubtedly the custom

gain its legal efficacy through imprimaturs acceptency by judges but in point of

existence they are prior to courts. At early stages of development, common law

and common customs are synonymous expressions. Courts accepted common

customs. As the legal system grows so also custom diminishes in importance. It

is also because as an instrument of development of law, it gives \ away to

legislation and precedents and as a law creating instrument stringent

limitations are imposed by law on its acceptency. However, even now custom

has not wholly lost its law creating efficacy. In India customs still holds away.

Some of the laws like, Hindu and Muslim, marriage, succession etc, laws are

mostly governed by the custom.

-267- '

A custom is to society what law is to state. If law exists for making

available to men social justice it seems but, logical that law should accept

customs. However, the law is based on sovereign power, but custt)m is on

public opinion. In strict sense, the sovereign power itself must at some stage be

based on major public opinion. The existence of an established usage is the

basis of a rational exception of its continuance for the future unless there be very good reasons for its discontinuance. Even today both legislatures and

judges accept and give effect to national or local customs 1.

The customs are divided into two kinds. Those are Legal and

conventional. A legal custom is one whose legal authority is absolute. A

conventional custom is one whose authority is conditional on its acceptency

and incorporation in agreements between the parties to be bound by it. The

Conventional custom is distinguished as usage.

The legal custom is itself of two kinds either local customs or general

customs. A legal system or custom is one, which is effective as a source of law

and legal rights directly and per se and not merely indirectly through the

medium of agreement. Local custom is confined to the particular locality of the

country and general custom is the traditional practices of the particular country.

However, there are certain features to consider the custom as the source of law

either in the local custom or to the general custom. Those features are (a)

reasonableness (b) conformity with statute law (c) observance of right and (d)

immemorial antiquity 2.

In respect of traditional knowledge, it can take that the custom is one of

the sources of law of the traditional knowledge. Infact the traditional

knowledge and customary law are too related subjects and there are good

influences of the customary practices over the traditional knowledge.

-268-At present there are no specific statutory laws or the judicial precedents

so far in respect of the traditional knowledge. If there is a question of

infringement or piracy, the customary legal system are followed in most of the

nations to get remedies against the infringement. In respect of traditional

knowledge there are some conventional laws formed in the international level

and some states have formed health legislations by following the international

conventions. However, there is no effective enforcement of law ekcept the

customary laws to provide protection in absence of effective other sources to

TK.

The 'Traditional Medicine' is often used similar for conventional

medicine. As per the Webster's definition of "traditional" term is not an

appropriate word for 'conventional medicine' but the 'Traditional' meaning is

defined that, 'handing down of opinions', 'doctrines', 'practices', 'rites', and

'customs', specifically 'by oral communication'. Further it is defined as

'traditional medicine is Chinese, Ayurvedic, 'alternative medicine' Tibetan or

other indigenous medicinal systems. Several centuries old philosophies and

practices are the foundations, which are highly rooted in the r|iedicinal

traditions of each of the said nation society. The cultural, spiritual an(^ societal

beliefs were formed the strong basis of TMK with some medicinal properties

and developed on the long experiences but the allopathic medicine has its basis

on the science, rather than the Cultural or Spiritual, therefore, the TM could not

be used synonymously with other orthodox medicines.

The word holistic medicines used to be a popular terms, and r ow with

the interests in alternative medicines, are not used as much, therefore the

holistic medicine is confusing term. However, it may be used as natural

medicine or traditional medicine and it may more appropriate term. The very

term is traditional medicine and continued with the customary practices of the j

traditional community. The entire medicine system is practiced by mostly on

-269-, oral customs by the traditional community in their health system, therefore,

most of the features of custom itself are acquainted with the traditional

medicine, it mean, the TMK and custom is interrelated subject matters.

Earlier days most of the communities have their own customary laws

and norms governing them. Their life style and rules are completely governed

in accordance with such customary laws. Customary laws results Ifrom the

accretion and sedimentation of repeated practices have been accepted by the

community and these informal regimes are often monitored and enforced by

elders, specialized experts and religious leaders within the community. So there

obviously will exist certain norms or customs which are intended tq regulate

the traditional knowledge and informations they possess. When connecting this

knowledge for the modern use, there are chances for conflicts to arise. It can be

that these laws may also bear remarkable similarity to formal idtellectual

property systems, which are the current law for protecting the modern

knowledge and informations. The customary practices and norms of the

Indigenous communities may be considered as the local custom and operates as

the local custom 3. However, there are again conflicts in between the current

IPR statue and TMK as it is the local custom. Under general practice, if the local

custom is contrary to the statue, the statue will prevail over it but, again if the

local custom has its intrinsic strength it will continue within the local limits.

Example is TM. i

However, in some nations, if there are grievances in respect cif the TK

including traditional medicine practices, the common law principles arie used to

apply. The common law principles are basically born under the customary i

practices. For e.g, if there is traditional medicine with one of the tribal

community and same is practiced by one person among the sdid tribal

community, but if any third person infringes the right of the s^id tribal

community, it is actionable by traditional legal remedy like injunction.

-270-declaration, etc. In such circumstances, the court will recognize the long

•

standing practices by way of its traditional rights and it is also required to

establish the right only by way customary practices.

However, tH|p custom is recognized as the source of law of traditional

knowledge including traditional medicines.

4.2 Tudicial or Courts Verdicts

The judicial president is the one of the main sources of law. The judicial

precedents are the verdicts of the higher courts in a particular case and it I

operates as the law within the territory of the said court as per its jurisdiction.

The judgement in the case has 'ratio decidendi' and the 'obiter- dicta' and the

ratio in the particular judgement is binding on all the lower courts within the

territorial jurisdiction of the said court. Therefore, the ratio of the decision is the

source of law. I

The precedents are the declaratory in nature, binding as authoritative or

persuasive as well as, born through the judicial reasoning 4. There is no specific

land mark decision relating to the traditional medicine knowledge through the

court of law.

•

However, there are some decisions of the various courts of lavy on basis

of IPR law available on IPR concepts and which may consider as the additional

supportive source of law to frame the principles to TMK. Those precec^ent cases

are "Pratap Pharma (Pvt.) Ltd. v. Union of India" 5; "R G. Anand v. M/s. Delux

Films"6; AIR 1987 SUPRME COURT 990 page, 7; Subhashis Bakshi and others,

v., West Bengal Medical Council and others 8; Monsanto Company v.

Coramandal Indag Products (P) Ltd 9; Bishwanath Prasad Radhey Shyam, v.

M/s. Hindustan Metal Industries" case 10; AIR 1982 SUPREME COURT 1444

page, 11; "Indian Performing Right Society Ltd. v. Eastern India Motioh Picture

Association" 12; Nav Sahitya Prakash and others, v. Anand Kumar and others.

-271-13; (1879) 12 Ch D 686 page, 14 Gee Pee Films Pvt. Ltd., v. Pratik Chjowdhury

and others,15; "F. H. and B. Corpn. v. Unichem Laboratories" 16; Raj Parkash, v.

Mangat Ram Choudhary and others,17; 1967 RFC 406 page, 18; Sega v.

Accolade 19; Atari Games Corp. v. Nintendo of America, Inc 20; Sony

Computer Entertainment, Inc. v. Connectix Corp. 21; Satyam Infow^y Ltd. v.

Siffynet Solutions Pvt. Ltd.

case 22; Singh v. George Wash. University case 23; 42 U.S.C. § 12182 page 24;

Kaltenberger v. Ohio Coll. of Podiatric Med.,25; Flemmings v. Howard

University 26; Haynes v. Williams,27; State v. Biggs case 28, Dent v. West

Virginia case, 29; State v. Grovett 901 page, 30 etc.

However, there is no direct judicial verdict on the traditional medicine as

it is not the developed law and no more cases filed before the court for

protection of the traditional medicine. Therefore, judicial precedents are not

direct source of law to TMK.

4.3 Legislative/Statutory sources

One of the strongest sources of law is the legislation. The legislation is

divided for the convenient as;

(a) international convention (b) domestic legislation.

Very recently, nations attentions were turned to intellectual property law to

preserve; protect and promote their TK in the international level. During 1992,

the Convention on Biological Diversity recognised the high value of TM and TK

and necessity to protect specie, ecosystem, landscape, and language, regulation

of access to it and its sustainable use. This TMK aspect also becopie more

pressing issue in the World Trade Organization Agreement on Trade-Related

Aspects of Intellectual Property Rights, and established rules for protect

intellectual property, but it is unfortunately more contradict the CBD, therefore

-272-

more states requested the WIPO to re-investigate about the relationship

between IPR, CBD and TK and WIPO began this work during 1999.

On the request of Indigenous peoples and others, the United Nations has

established Working Group on Indigenous populations and made two surveys

on 'treaty rights' and 'land rights', these led to recognitions of indigenous lands

and resource rights and suggested to address the said issue of collective human

rights, which is distinct from existing individual human rights laws.

The said collective human rights of indigenous and local communities were

recognised in several occasions, like, in the International Labor Organization

Convention 169 -1989 and the Draft Declaration on the Rights of Indigenous

Peoples 1982-2006. The Rio Declaration -1992, also endorsed by the majority

participated nations by recognising indigenous and local communities as a

distinct group with special concerns by state. Indigenous peoples ^nd TMK

practitioners have not given express consent for patent but they have sought for

greater protection and control over TMK and its resources. Some traditional

communities have sought to ensure their TK is used equitably as per

restrictions set by their tradition or for benefit sharing which they define.

Now 3 broad approaches to protect TK are developed, the first is protecting

TK as a form of Cultural Heritage, secondly, protection of TK as a Collective

Human Right and thirdly, the WTO and WIPO, re-investigate thb use of

existing sui generis modal to protect TK. This approach however, not suitable for

the TMK.

Currently, very few nations are offering sui generis protection for TK,

however, many numbers of nations are not still decided. Some nations still have

been supporting to investigate for IPR property mechanism protection to TK.

There are several international conventions which are discussed in the chapter

V of the thesis and will be the supportive sources for the next legal

-273-

developments in the international level and will also be the supportive sources

to the domestic laws.

There is no domestic successive legislations in respect of the TK, but there

are very few (2 legislations on different concepts by Peru and Phili][)pines) it

may be the sources to the next legal development either in the international

level or in the domestic or local region. However, there is no good authoritative,

suitable and direct international conventions or in the domestic legislations so

far in respect of the tradition medicine. Whatever international or local

legislation on the traditional medicine existed now, will be the supportive

sources of law for the development of TMK.

-274-

Chapter Note

1. Summary of Salmond's Jurisprudence by A K Sarkar, 3^<^ Editiori Thripati Publications, Bombay.

2. Ibid Page No. 78 - 79.

3. The thought of the researcher.

4. The thought of the researcher.

5. AIR 1997 SUPREME COURT 2648. Pratap Pharma (Pvt.) Ltd.v.Union of India

The Supreme Court of India held in "Pratap Pharma (Pvt.) Ltd. v. Union of India" under Drugs and Cosmetics Act (23 of 1940), S.3(h) (as amended by Act 68 of 1982) and Constitution of India, Art.l4, Art.l9(l)(g) that. Drugs, Cosmetics And Magic Remedies are "Patent and proprietary medicine". The amendment of definition so as to exclude medicine viz. Ayurvedic or Siddha or Unani drug which is administered by parental route and a formula included in authoritative books as specified in S. 3(a). The amendment is to ensure safety of life of human beings or animals and drugs being administered to human beings or animals are required to be regulated. Therefore amendment is not voilative of Art. 14 nor imposes unreasonable restriction on right to carry on trade under Art 19(l)(g). It is a regulation within the meaning of Art. 19(6) of Constitution which includes total prohibition. So 'reasonable restrictions on the drugs to maintain the safety is not violate of fundamental rights,' is the source of law.

6. AIR 1978 SUPREME COURT 1613. R G. Anand v. M/s. Delux Films.

The Supreme Court of India held in "R G. Anand v. M/s. Delux Films" Copyright Act (14 of 1957), S.51 - Question whether there has been violation of copyright and how to determine and Principles and tests pointed out are decided. Mr. Per Fazal Ali, J. Mr. Jaswant Singh, J. agreeing that, there can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should deternune whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the

-275-original. The 'formula of the safe test' is the source of law. The Constitution of India, Art.136, the case relating to copyright infringement, concurrent finding of fact - scope for interference in special leave appeal. Mr. Per Fazal Ali J, where the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright, the Supreme Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, the court feels that the judgment of the courts below are absolutely correct. 'The finding of the fact by the courts below will not be interfered in the special leave petition' is the source of law.

7. AIR 1987 SUPRME COURT 990. The Supreme Court of India held under the Constitution of India Art, 32 that. Public interest litigation filed and the duty of statutory bodies to provide the information to court. Writ petition seeking banning of injurious drugs and there is question of national importance, therefore notice issued to Medical Council of India; Indian Medical Association; Drugs Medical Council of India and Drugs Authorities of states for their participation in debate and for assisting the court. 'They are duty bound to join and participate and no option to go exparte like other denary litigants' is the source of law.

8. AIR 2003 SUPRME COURT 1563. Subhashis Bakshi and others, v. West Bengal Medical Council and others. The Supreme Court pi India 8 held in this case that 'the citizen has rights to practice Medicine, however there are subject to restrictions' is the source of law.

9. AIR 1986 SUPREME COURT 712 "Monsanto Company v. Coramandal Indag Products (P) Ltd."

In Monsanto Company v. Coramandal Indag Products (P) Ltd 9, case under the Patents Act (39 of 1970), S.64 about the Revocation of patent. Active agent in patented product, herbicide in respect of which secrecy was claimed no secret nor patented by anybody. The Process employed for use of product therefore, no discovery hence Patent is liable to be revoked. Where infringement of patent was alleged by claiming secrecy in respect of the active agent used in the patented product, a herbicide, and also in the emulsifier employed for the use of the product but it was found that the formula for the herbicide was published in the report of the International Rice Research Institute for the year 1968 and common name of active agent in respect of which secrecy was claimed, was also mentioned in the report of the Institute for the subsequent year and no one patented that invention and it was the property of the population of the world and emulsification is a well-known process and is no one's discovery in that before any herbicide could be used it had to be converted into an emulsion by dissolving it in a suitable solvent and by mixing the solution with an emulsifying agent, there being no patent for or any secrecy attached to active agent the solvent or the emulsifying agent and the process of emulsification being no new discovery, the suit based on the secrecy claimed in respect of the active agent and the claim for the process of emulsification must necessarily fail. The supreme court therefore patent was liable to be revoked. So

-276-'no new discovery' is the source of law.To satisfy the requirement of being publicly known as used in clauses (e) and (f) of S. 64(1), it is not necessary that it should be widely used to the knowledge of the consumer public. It is sufficient, if it is known to the persons who are engaged in the pursuit of the knowledge of the patented product or process either as men of science or men of commerce or consumers. The section of the public who, as men of science or men of commerce, were interested in knowing about Herbicides which would destroy weeds but not rice must have been aware of the discovery of the active agent. There was no secret about the active agent as claimed by the plaintiffs since there was no patent for the agent. Emulsification was the well-known cind common process by which any Herbicide could be used. Neither agent nor the process of emulsification was capable of being claimed by the plaintiffs as their exclusive property. The solvent and the emulsifier were not secrets and they were ordinary market products. From the beginning to the end, there was no secret and there was no invention by the plaintiffs. The ingredients, the active ingredient the solvent and the emulsifier, were known; the process was known, the product was known and the use was known.

10. AIR 1982 SUPREME COURT 1444 -Bishwanath Prasad Radhey Shyam, M/s. v. M/s. Hindustan Metal Industries.

In Bishwanath Prasad Radhey Shyam, v. M/s. Hindustan Metal Industries" case the supreme Court of India held in respect of grant of Patent, must have novelty and utility. The fundamental principle of Patent Law is that a patent is granted only for an invention which must be new and useful. That is to say, it must have novelty and utility. It is essential for the validity of a patent that it must be the inventor's own discovery as opposed to mere verification of what was already known before the date of the patent. UrUike the Patents Act, 1970, the Act of 1911 does not specify the requirement of being useful in the definition of 'invention'. But Courts have always taken the view that a patentable invention, apart from being a new manufacture, must also be useful. The fovmdation for this judicial interpretation is to be found in the fact that S. 26 (1) (f) of the 1911 Act recognised lack of utility as one of the grounds on which a patent can be revoked. It is important that in order to be patentable an improvement on sometliing known before or a combination of different matters already known, should be something more than a mere workshop improvement; and must independentiy satisfy the test of invention or an inventive step'. To be patentable the improvement or the combination must produce a new result, or a new article or a better or cheaper article than before. The combination of old known integers may be so combined that by their working interrelation they produce a new process or improved result. Mere collection of more than one integers or things not involving the exercise of any inventive faculty, does not qualify for the grant of a patent. In the instant case held that the patent described as "Method of and means for mounting metallic utensils or the like on lathe for turrung them before polishing", which was got patented by M/s. Hindustan Metal Industries was neither a manner of new manufacture nor a distinctive improvement on the old contrivance, involving any novelty or inventive step having regard to what was already known and practiced in the coiuitry for a long time before its alleged date of invention. There had been no substantial exercise of the inventive power or innovative faculty. There was no evidence that the patented

-277-machine was the result of any research, independent thought, ingenuity and skill. When a partner of the firm seeking patents was alleged to have invented the new process, his non-examination before the trial Court could lead to the inference of lack of novelty.

11. (1887) 4 RPC 407 was relied to AIR 1982 SUPREME COURT 1444.

The "Invention" whether involves novelty and inventive step is the mixed question of law and fact. Test to determine, indicated. Patents Act (39 of 1970), S.2(j) and S.64 provides where an alleged invention involves novelty and an inventive step', is a mixed question of law and fact, depending largely on he circumstances of the case. Although no absolute test uniformly applicable in all circumstances can be devised, certain broad criteria can be indicated, whether the "manner of manufacture" patented, was publicly known or used and practiced in the country before or at the date of the patent. If the answer to this question is Yes', it will negative novelty or 'subject-matter'. Prior public knowledge of the alleged invention, which would disqualify the grant of a patent cah be by word of mouth or by publication through books or other media. The expressidip "does not involve any inventive stop" used in S 26 (1) (e) of the Act and its equivalent word "obvious" and acquired special significance in the terminology of Patent Law. The 'obviousness' has to be strictly and objectively judged. 'The expression does not involve any inventive stop but there must be obviousness has to be strictly and objectively judged' is the source of law.

12. Indian Performing Right Society Ltd., Appellant v. Eastern India Motion.

In "Indian Performing Right Society Ltd. v. Eastern India Motion Picture Association" the supreme court of India held 12 under the copyright Act S.14, 5.17 -that. Right of Music composer whether capable of assignment or whether right can be defeated by producer of film by engaging him. The composer of a lyric or a musical work retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be restrained from doing so. An existing and future right of music composer and lyricist in their respective 'works' as defined in the Act is capable of assignment subject to the conditions mentioned in S. 18 of the Act as also in S. 19 of the Act which requires an assignment to be in writing signed by the assignor or by his duly authorized agent. The author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author or owner of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio-diffusion as S. 14 (1) (c) of the Act expressly permits the owner of the copyright of the cinematrograph film to do all these thirtgs. In such cases, the author (owner) of the cinematrograph fUm carmot be said to wrongfully appropriate anything, which belongs to the composer of the lyric or musical work. Thus a protectable copyright comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. 'The rights of a music composer or lyricist can be defeated by the producer of a cinematograph film in the marmer laid down in provisions (b) and (c) of S. 17 of the Act' is the source of law.

-278-13. AIR 1981 ALLAHABAD 2000; Nav Sahitya Prakash and others, v. Anand Kumar and others. In Nav Sahitya Prakash and others. Appellants v. Anand Kumar and others, 13. under the Copyright Act Sn.55, one co-owner of the right cannot independently deal with it and others could sue the licensee for infringement. A joint owner of a copyright cannot, without the consent of the other joint owner, grant a license or interest in it and the other joint owner aggrieved by such grant can sue the licensee for infringement of the right. The joint owner guilty of such dealing will also be answerable to the other owners.

14. (1879) 12 Ch D 686; Halsbury's Laws of England 3rd Edn. Vol. VIII P. 738.

15. AIR 2002 CALCUTTA 33, Gee Pee Films Pvt. Ltd., v. Pratik Chowdhury and others. In Gee Pee Films Pvt. Ltd., v. Pratik Chowdhury and others. Supreme court of India held that,15 the Copyright Act S.17, S.2(d), S.2(uu) the first owner of copyright/Musical works the Plaintiff Company commissioning lyricist, musical composer and singer for non-film lyrics consideration paid to them. It is case of contract for service and not contract of service. They are author and thus first owner of copyright the Plaintiff Company making arrangement for recording is not copy-rights over lyrics and musical works. It is apparent from the provisions of Ss.2(d), 2(uu) and 17 of the Act that so far lyrics and musical works are concerned, lyricist and composer respectively are the authors thereof and in view of S.17 of the Act, the first owner of the copyright of lyrics and musical works shall be the authors unless it is shown that such work was made in course of author's employment under a contract of service or apprenticeship with his employer and there is no agreement to the contrary as regards retention of copyright.

16. AIR 1969 BOMBAY 255 (V. 56 C 40)- F. H. and B. Corpn. v. Unichem Laboratories. In "F. H. and B. Corpn. v. Unichem Laboratories" 16 the High court of Bombay held under S.29 Patent Act that. Question of infringement of patent is mixed question of law and fact.

17. AIR 1978 DELHI 1- Raj Parkash, v. Mangat Ram Choudhary' and others and relied on (1885) 2 RPC 45 and (1936) 53 RPC 167 and 1956 RPC 125. In Raj Parkash, v. Mangat Ram Choudhary and others, case Delhi High Court held under the Patents and Designs Act (2 of 1911), S.2(8), invention is to find out or discover something not found or discovered by any one before and it is not necessary that the invention should be anything complicated and the essential thing is that the inventor was the first one to adopt it and the principle therefore is that every simple invention that is claimed, so long as it is something novel or new would be an invention and the claims and the specifications have to be read in that light and a new invention may consist of a new combination of all integers so as to produce a new or important result or may consist of altogether new integers and the claim for anhcipation by the defendant has to be either by prior user or by prior publication. The S.29 and S.26 of the PATENT ACT provides about the Infringement of rights. To find out whether the patent has been infringed the patented article or process has to be compared with the infringing article or process and vmessential features in tine infringing article or process are of no account and if the infringing goods are made

-279-with the same object in view which is attained by the patented article, then a minor variation does not mean that there is no piracy and a person is guilt)' of infringement if he makes what is in substance the equivalent of the patented article and some trifling or unessential variation has to be ignored. The jurisprudential support for reverse engineering can be reviewed in three prominent cases.

18.1967 RFC 406.

19. S77 F.2d 1510 (9th Cir. 1992) Sega v. Accolade leading case on 'fair use' in the context of the reverse engineering of computer software is Sega Enterprises Ltd. v. Accolade Inc. decided by the Ninth Circuit Court of Appeal. The defendant. Accolade, had analyzed Sega's video game programs in order to determine the Genesis console compatibility requirements. Sega challenged Accolade's reverse engineering process on the grounds that the intermediate copying during disassembly constituted a violation of Sega's copyright in the game cartridge object code. The Court held that Accolade's intermediate copying of the Sega object code would haVe constituted copyright infringement but was protected by the 'fair use' exception. The Court considered four relevant factors: a) The purpose and character of the use- In considering the purpose of the use, the court determined that even though Accolade eventually used the information obtained by the copying to produce a competing product, this was not conclusive. Although the end goal was commercial, the purpose was to study the functional requirements only, and therefore this use was legitimate. b) The nature of the work: The court noted that not all copyrighted works are entitled to the same level of protection. In particular, the protection provided by copyright does not extend to the ideas underlying the work. The fact that computer programs couldn't be examined without a certain amount of literal copying proved to be a significant factor. c) The amount of the work copied: In considering the amount of the work copied, the court noted that even though Accolade copied the entire work, it would still not by definition preclude a finding of 'fair use.' d) The effect of the use upon the potential market for the copyrighted work: The court cautioned against making this factor determinative. The court conceded that Accolade's entry into the game market undoubtedly affected the market for Genesis-compatible games in an indirect fashion, but further indicated that allowing Sega to try to monopolize the market by making it impossible for others to compete ran counter to the statutory purpose of the Copyright Act to promote creative expression. The court therefore found the fourth factor favored Accolade despite the minor economic loss that Sega might suffer. Therefore, the court found that where disassembly is the only means to gain access to the ideas arid functional elements embedded in a copyrighted computer program and where the reason for seeking such access is to achieve interoperability, disassembly is a 'fair use' of the copyrighted work.

20. Atari Games Corp. v. Nintendo of America, Inc. 975 F.2d 832 (Fed. Cir. 1992.) In Atari Games Corp. v. Nintendo of America, Inc. a case decided shortly before Sega, the Federal Circuit Court reached a similar conclusion concerning the legality of reverse engineering. However, since the issue arose in the context of a preliminary injunction, the analysis was not as detailed as in the Sega case. Further, in Atari Games,

-280-the fair use issue was complicated by the fact that Atari Games' lawyers lied to the U.S. Copyright Office to obtain the registration copy of Nintendo source code so that the firm's engineers could use it to finalize the development of compatible games. Nevertheless, the Court ruled that the initial de-compilation copying constituted 'fair use.'

21. Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000).

The Ninth Circuit Court recently reaffirmed the Sega ruling in Sony Computer Entertainment, Inc. v. Connectix Corp. The main difference between this and the Sega case was that Connectix disassembled Sony programs in order to develop emulation software to allow owners of Apple iMac computers to play Sony Play Station games. That is, Connectix reverse-engineered in order to make a competing platform, not to make compatible games. The appellate court perceived no legal difference between the de-compilation-for-interoperability considerations pertinent to development of comp eating platforms and those pertinent to games. It appears that the U.S. doctrine of 'fair use' favors a relatively wide scope for reverse engineering. According to current case law, reverse engineering is allowed for the creation of competing hardware platforms and interoperable computer programs.

22. Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.

Foreign outlook on Satyam Infoximj Ltd. v. Siffynet. Solutions Pvt. Ltd. case is relating to domain name. Several rulings have been made around the world on domain name disputes under national laws or under the Uniform Domain Name Dispute Resolution Policy. However, very few countries have a Supreme Court ruling in this area and hence India's first such ruling, Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd., is of significant interest, not only domestically but also at an international level. This comment examines the arguments advanced in the case and the decision of the Supreme Court of India in the light of the Trade Marks Act, the UDRP and foreign decisions in the area.

23. Singh v. George Wash. Univ., Civ. A. No. 03-1681 (D.D.C. July 12, 2006.

In Singh v. George Wash. University case arises from a dispute between plaintiff Eric Steere, and the medical school that dismissed him from its program, defendant the George Washington University School of Medicine and Health Sciences. Singh v. George Wash. Univ., Civ. A. No. 03-1681 (D.D.C. July 12, 2006) (Lamberth, J.) Plaintiff Steere claims that GW dismissed him because of a disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12182(a) (2000) ("ADA"). Plaintiff initially named as additional defendan|s two administrators of the medical school, but this Court dismissed the complaint as to those two defendants in Steere v. George Wash, Univ., et fl/., 368 F. Supp. 2d 52, 58 (D.D.C. 2005) (Lamberth, J.), and granted in part and denied in part defendant's pretrial motion for summary judgment. The parties appeared before this Court for a non-jury trial on December 7-9 and 12, 2005. Plaintiff and defendant each presented several witnesses and a number 6f exhibits. At the Court's direction, each party submitted Proposed Findings of Fact & Conclusions of Law on

-281-March 3, 2006. Based on all of the evidence presented, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter judgment in favor of defendant and against plaintiff. The Plaintiff claims that GW's failure to offer reasonable accdl^nmodations before dismissing him constitutes discrimination in violation of the ADA. That section provides: No individual shall be discriminated agaiiost on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public acconrunodation. The Court noted in Steere, 368 F. Supp. 24 at 55, the plaintiff must establish a violation of this provision by demonstrating;

(1) that he has a disability; (2) that he is otherwise qualified for the benefit in question; and (3) that he was excluded from the benefit due to discrimination because of the

disability.

24. 42 U.S.C. § 12182.

25. Kaltenberger v. Ohio Coll ofPodiatric Med., 162 F.3d 432, 435 (6'h Cir. 1998); cf. Ferrell V. Howard Univ., Civ. A. No. 98-1009,1999 WL 1581759, at 3 (D.D.C. Dec. 2,1999), affd, 254 F.3d 315 (D.C. Cir. 2000).

26.198 F.3d 857, 861 (D.C. Cir. 1999).

In Flemmings v. Howard Univ,under this decision of the court, the first element, to prove that he has a disability under the ADA, plaintiff must demonstrate that (a) he has an impairment (b) that is related to a major life activity (c) and that substantially limits that major life activity. The ADA and construing its language that a protected disability is "a physical or mental impairment that substantially limits one or more of the major life activities of individual".

27. Haynes v. Williams, 392 F.3d 478,481-82 (D.C. Cir. 2004) (citing § 12102(2).

28. In State v. Biggs [7] (1903) US Court.

In State v. Biggs case licensing is valid only to protect the public, not to protect a profession's economic status held by the Supreme Court of North Carolina issued a strong decision supporting the rights of alternative health practitioners, in which it reaffirmed that medical licensing laws may be enacted solely to protect the public, not to further the economic privileges of the medical profession, and that a legislative act that attempts to limit the right of patients to seek less expensive and complex modes of treatment is not a legitimate exercise of the police power. A lower court had found Biggs guilty of practicing medicine without a license; he advertised himself as a "non­medical physician", claimed to cure disease by a system of drugless healing, and treated patients by massage baths, physical culture, manipulation of muscles, bones, spine, and solar plexus, and by advising patients what to eat and what not to eat. In spite of the numerous medically incriminating phrases used by Biggs, he successfully argued his case on appeal to the North Carolina Supreme Court. The central issue in

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State V. Biggs was that the legislature of North Carolina had passed statutes that attempted to prohibit all other forms of primary health care, other than by allopathic medicine.

29. In Dent v. West Virginia case right of a state to license medical practice. Several major court decisions affirmed the state's authority in establishing licensing of the medical profession. Perhaps the most explicit of these decisions, in Dent v. West Virginia, outlined the justification for such licensing: The power of the State to provide for the common welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different States, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend upon the judgment of the State as to their necessity. While it is recognized that patriarchal societies within the past 6,000 years of recorded history tend to enforce community standards by such bureaucratic means (ancient Rome, Babylon, and Egypt), it is by no means since tirrie immemorial that this has been true. Although the collective consciousness of the Supreme Court justices seems to extend no further than the history of patilarchal empires and civilizations, one has only to look back into recent history of American Indian spiritual practices and healing traditions to observe that there exist very different modes for community development of the health care professions. Such modes include introspective, self-referential criteria of appropriateness, based on common sense and a deep appreciation for man's connection with nature.

30. State v. Grovett 901case, licensing standards cannot be used to effectively destroy a profession or to prevent its practice the Supreme Court of Ohio in the said case ruled that a state cannot impose unreasonable or impossible requirements upon a profession or school of medicine so as to effectively prevent its practice. Grovett was an osteopath charged with practicing medicine without a license, under the statutes of Ohio that stipulated one is regarded as practicing medicine, whoever "shall prescribe, or who shall recommend for a fee for like use, any drug or medicine, appliance, application, operation or tieatment, of whatever nature, for the cure or relief of any wound, fracture, or bodily injury, infirmity, or disease." Further stipulatiorw of the Ohio statutes required osteopaths to pass medical courses relevant to the prescribing of drugs while at the same time prohibiting them from prescribing these very drugs. Such requirements were ruled unconstitutional under the due process and equal protection clauses of the 14th amendment.

-283-Chapter - V

MULTILATERAL CONVENTIONS ON THE TRADITIONAL MEDICINE AND PROTECTIOI^ TO THE TRADITIONAL MEDICINAL PRACTICES

This is the chapter related to the multilateral conventions, declarations,

workshops, guidelines etc, on the traditional medicine knowledge. There are

some international conventions held relating to the • traditional knowledge,

especially those are trade related objects. There is no specific international

convention held relating to the traditional medicine knowledge. However, the

existed International Conventions relating to the traditional knowledge are

highly based on the concept of IPR but, some sociological and equitable benefits

are given to the traditional community. Further, the International Conventions

are related to the Community Knowledge or Indigenous Knowledge, which are

all discussed herein below.

The need for a legal mechanism for the protection of TK has been a

subject of discussion at the national and international level since 1960. The

discussions were held by the World Intellectual Property Organization and the

United Nations Educational, Scientific and Cultural Organization. WIPO is

concerned with the intellectual property protection and UNESCO is concerned

with the general protection of TK. The TK or Folklore has always been

considered as part of the common heritage of the traditional community and

there were no formal or iriformal laws in many countries which specifically

bestowed ownership rights of TK on any community and prohibit its

exploitation without their consent. This leads to widespread exploitation of

folklore inside and outside the nation concerned 1.

The important International Conventions, agreements, workshops

relating to the Traditional Knowledge, protection of Indigenous and traditional

Community and their cultures are discussed below.